Opinion of mr Advocate-General Reischl

Mr President,

Members of the Court,

Today I have to consider a case concerning the effects of an accident suffered by Mr Gigante, an official of the Commission.

I would first like to make the following remarks about the factual situation as it has developed since the time of the accident.

Mr Gigante took up a post with the Commission of the European Communities in 1960. Pursuant to the Staff Regulations he was established as an official with effect from 1 January 1962. At first he was employed in the Roneo Department as an opérateur auxiliaire. With effect from 1 June 1964 he was appointed clerical assistant, Category C 4, in the Directorate-General for Administration and Personnel, where he was apparently concerned with photo-copying work.

On 13 November 1962, on the way home from his place of work, Mr Gigante suffered a motor accident.

Following this accident Mr Gigante was unfit for work until 2 January 1963. In 1963, in account of the continuing necessity for medical treatment, he undertook half-day working. On 18 December 1963 the Commission's medical officer established that Mr Gigante was capable of performing photo-copying work, with the proviso that a chair must be available for him during rest periods. At this time, and subsequently, the medical treatment apparently continued.

Since the Commission — as we know from other cases — has instituted insurance cover for accidents suffered by its employees, the relevant insurance company also took in hand the case of Mr Gigante. This company informed the Commission, in January 1965, that its doctor had established that Mr Gigante had completely recovered from his injuries, and that no lasting effects of the accident were apparent which could justify the finding that he was unfit for work. The Commission's medical officer was also of this opinion. Mr Gigante, however, disagreed. Accordingly, an attempt was made — as provided for in the insurance policy — to elucidate this question by means of arbitration. As the Commission has stated, this attempt was subsequently frustrated by Mr Gigante's refusal to cooperate. The insurance company, therefore, in July 1968, invoked the period of limitation contained in the insurance policy and made no further payments (whereas, apparently, up to January 1965 all medical and pharmaceutical expenses occasioned by the accident had been refunded).

In view of the fact that Mr Gigante had been absent from work up to the end of 1967 for more than 600 days on grounds of ill-health the appointing authority decided, in October 1967, to refer Mr Gigante's case to the Invalidity Committee. This procedure, for various reaons which are no longer of interest, was delayed. However, on 7 January 1970, the Invalidity Committee made its report. It came to the conclusion that the accident had not given rise to any total permanent invalidity and that it was not impossible for Mr Gigante to perform duties corresponding to a post in his career bracket. This report was not, however, signed by Mr Gigante's doctor. Moreover, by letter of 12 February 1970 he stated that Mr Gigante was not capable of continuing to perform his previous duties and that his invalidity amounted to more than 10 %.

The disagreement therefore continued. The details, in particular further examinations performed by the official doctors in Brussels and Ispra, can be disregarded. I will simply mention, since it was stated during the court proceedings, that Mr Gigante lodged a formal complaint against the appointing authority on 17 February 1971, pursuant to Article 90 of the Staff Regulations. In this complaint he claimed, leaving aside those aspects not further pursued during the proceedings, that expenses which had arisen during the period from 1963 to 1970 for the treatment of the effects of the accident had only been partially reimbursed; under this head an amount of FB 90391 remained due. Furthermore he requested that an Invalidity Committee be convened pursuant to Article 59 (3) of the Staff Regulations and that Article 73 (2) (c) of the Staff Regulations be applied, that is to say, that a specified capital amount be paid by reason of the partial permanent invalidity occasioned by the accident.

Up to the end of the two months' period laid down by Article 91 of the Staff Regulations, Mr Gigante received no response to this claim. It was only in a letter dated 29 April 1971 that it was suggested to him by the Directorate-General for Administration and Personnel that a new Invalidity Committee should be convened, constituted differently from that which had exercised its functions during 1970.

Mr Gigante did not see this as an adequate response to his complaint and thus appealed to the Court of Justice on 16 June 1971.

Subsequent to the filing of the action the appointing authority issued a decision to the effect that the case should again be referred to the Invalidity Committee, with the effect that — as provided in Article 7 of Annex II to the Staff Regulations — in August 1971 a doctor was appointed by the President of the Court of Justice. After the applicant had also appointed a doctor, the Directorate-General for Administration and Personnel informed the first-appointed doctor by letter dated 29 September 1971 that together with the doctor appointed by the applicant he should choose a third doctor. At the same time the task of the Invalidity Committee was outlined: it was to investigate whether the applicant was suffering any permanent partial invalidity which would make it impossible for him to perform the duties corresponding to a post in his career bracket, and whether the partial invalidity, the extent of which would have to be determined, was the direct result of the accident suffered. The doctor appointed by the applicant received notification to this effect on 15 October 1971. In January 1972 the task of the Invalidity Committee was widened at the instigation of the applicant's lawyer. It was further to investigate whether additional medical treatment of the effects of the accident were necessary, and whether the expenses claimed by the applicant could be regarded as having been caused by the accident, so as to see whether a corresponding allocation would have to be undertaken.

Thereafter attempts were made to constitute the Invalidity Committee, pursuant to Article 7 of Annex II to the Staff Regulations. These attempts continued after the opening of the oral proceedings before the Court of Justice on 14 June 1972, but were unsuccessful, the two doctors first appointed being unable to reach agreement. The details of this matter are known to the Court from the numerous letters exchanged by the doctors which have been produced before the Court.

The Court was informed of this situation by a communication from the Commission of 26 April 1973, further requesting that the President of the First Chamber should constitute the Invalidity Committee by naming the third doctor. This request was not granted; instead it was proposed to the parties on 17 May 1973 that, with the agreement of the doctors already appointed, a joint application to the President of Chamber be formulated, to the effect that the President or the Chamber might appoint a third doctor. The doctor first appointed by the President of the Court of Justice indicated his agreement in this matter. However, the doctor appointed by the applicant did not agree, as appears from a communication from the applicant's lawyer dated 15 June 1973.

In view of the facts as presented above the Chamber decided to recommence the oral proceedings in this case. This took place at the hearing on 24 October 1973.

It is at this stage in the proceedings that I now have to give my considered opinion on this case.

Allow me to begin by recalling the applicant's submissions.

They are set out as follows in the application:

It is submitted that the Court should

However, following the applicant's subsequent rejoinders, I have the impression that these submissions have not been maintained in this form; this is true at least of the final submission contained in the application. From the correspondence produced before the Court it is clear that the applicant's lawyer, on 3 November 1971, expressed the wish to the Commission that the Invalidity Committee should also examine whether the medical and pharmaceutical expenses claimed by the applicant should be reimbursed pursuant to Article 73 (3) of the Staff Regulations. The Commission complied with this request in formulating the task assigned to the Invalidity Committee. We can therefore assume that this part of the application need no longer be specifically considered by the Court.

Accordingly the Court has only to rule on the following:

I will therefore restrict my opinion to a consideration of these claims.

1 Translated from the German.